Point of Law: Prosecution has to prove the foundational facts of the offence charged against the accused, not based on proof beyond reasonable doubt, but on the basis of preponderance of probability.

JUDGMENT :

Heard Mr. J.C Lalnungsanga, learned counsel appearing for the appellant as well as Mr. C. Zoramchhana, learned Public Prosecutor, Mizoram. The appellant has challenged the impugned Judgment & Order dated 26.04.2018 and the sentence order dated 17.05.2018 passed by the Special Court, POCSO Act, Lunglei in Crl.Tr. No. 158 of 2016, by which the appellant is convicted under section 376(2)(f)(i)(n) Indian Penal Code read with Section 6 of the POCSO Act, 2012 on 26.04.2018 and sentenced to undergo 10 years Rigorous Imprisonment with a fine of Rs.1000/-, in default S.I. for 1 month, vide Sentence Order dated 17.05.2018 and in Crl. Tr. No. 159 of 2016 wherein the accused was found guilty and convicted under section 376(2)(i)/506 IPC read with section 4 of POCSO Act on 26.04.2018 and sentenced to undergo 10 years Rigorous Imprisonment with a fine of Rs.1000/-, in default S.I. for 1 month, vide Sentence Order dated 17.05.2018. This court find it fit to club together both the cases in hearing the appeal wherein the nature of the offence is of the same kind and wherein both the incidents took place well within the period of one year, this is, in fact, an appropriate case for the trial court to have framed the charge of both the cases together under section 219 Cr.P.C.

2. The prosecution story in brief in Crl.A 27 of 2019 arising out of Crl. Tr. No. 158 of 2016 is that on 9.6.2015 @ 3:00 pm, a written report was submitted by H. Chhansanga, S/o Hengnawna of Sangau-I to the effect that his niece ‘X’ aged 12 yrs. D/o Zamliana (L) had been raped by F. Nawlsanga (63) of Sangau since she was 9 years old (2012) and even during the year 2015 he had raped her on three different occasions. They were late in learning about this fact and his niece ‘X’ cannot reveal the exact number of times she was raped by him. That the accused F. Nawlsanga is the husband of ‘X’s grandmother and she lives with them in the same house. In pursuance to the FIR submitted, PS C/No. 8/2015 dt.09.06.2015 u/s 376(2)(f)(i)(n) IPC r/w 6 of POCSO Act was registered against accused F. Nawlsanga (63) S/o Thlacheua (L) of Sangau.

3. During the course of investigation the P.O was visited and sketch map drawn. The statements of the Complainant and the victim ‘X’ was taken. The accused F. Nawlsanga (63) S/o Thlacheuva (L) was arrested on 09.06.2015 and forwarded to Court of CJM, Lawngtlai for judicial custody. The victim ‘X’ and the accused F. Nawlsanga (63), S/o Thlacheuva (L) were forwarded to M.O, Lawngtlai for medical examination. The victim’s medical report revealed ‘hymen-ruptured’ but there was no sign of fresh injury and vaginal smear was found negative. The accused F. Nawlsanga’s medical examination report revealed ‘normal’. The accused was thoroughly interrogated, wherein he admitted his guilt before Police. On 10.06.2015 accused was forwarded to CJM Court, Lawngtlai to record his confessional statement. On the same day the victim ‘X’ was also forwarded to CJM Court, Lawngtlai for recording her judicial statement. A prima facie case u/s 376(2)(f)(i)(n) IPC r/w 6 of POCSO Act was found well established against the accused F. Nawlsanga (63), S/o Thlacheuva (L) of Sangau – I and charge sheet submitted accordingly.

4. Charge under section 6 of the POCSO Act, 2012 read with section 376(2)(f)(i)(n) IPC was framed against the appellant on 02.08.2016, wherein the appellant pleaded not guilty and asked for trial. The trial court after examination of 5 (five) prosecution witnesses, examined the appellant/accused under Section 313 Cr.P.C on 26.05.2016 where he denied having committed any sexual assault upon the victim girl X, thereafter, 1 (one) defense witness was examined. The learned Trial Court, after hearing the parties relying, on the testimony of the victim girl X, found the appellant to be guilty and convicted him under section 376(2)(f)(i)(n) IPC read with section 6 of the POCSO Act, 2012 vide the impugned Judgment & Order dated 26.04.2018. Sentence hearing was held on